Legal aid and civil justice

Effective access to the courts is being threatened.

Yesterday's written statement of the Lord Chancellor, Kenneth Clarke QC MP began well enough. Introducing the Legal Aid, Sentencing and Punishment of Offenders Bill, he said:

Protecting the public from crime, ensuring those who break the law face the consequences, and providing swift, cost-effective and fair access to justice are fundamental responsibilities of the state towards its citizens.

So there you have it. In respect to both civil and criminal justice, providing swift, cost-effective and fair access to justice is a fundamental responsibility of the state towards its citizens.

But in respect of civil justice -- where one party takes another to court -- what does that actually mean?

Civil courts have two broadly overlapping functions. They provide a forum for settling disputes and they provide the means by which individuals can rely on their legal rights. Ideally, a civil court should do both: disputes are resolved by a judge determining the respective legal rights of the claimant and defendant.

In practice, however, almost all civil litigation is settled before it gets anywhere close to a judge for final disposal. As a general rule, litigation is settled in favour of the party in the stronger negotiating position: the party with more money, with better access to appropriate legal advice, and with the greater ability to assume the risk of losing.

In this way, the early settlement of civil disputes will usually tend to disadvantage the claimant or defendant that is weaker than the opposing party. It is only if the claimant can get their case before an impartial and independent court that they can hope to take the benefit of their legal rights. Otherwise, civil litigation is reduced to what the stronger party can get away with. Dispute resolution -- even "early dispute resolution" -- is not identical to access to justice. Indeed, it can mean the reverse.

With this in mind, let us see what Clarke also said yesterday in the written statement, specifically about civil justice:

In civil justice, we have a system burdened by spiraling costs, slow court procedures, unnecessary litigation, and too limited an awareness of alternatives to court -- all of which add to a fear of a compensation culture. In particular, our current system of legal aid too often encourages people to bring their problems before the courts, even when they are not the right place to provide good solutions and sometimes for litigation that people paying out of their own pocket would not have pursued.

However, these appear to be weasel words.

Take, for example, "our current system of legal aid too often encourages people to bring their problems before the courts" and replace the word "encourages" with the word "enables". If the reality of the matter is that the current system of legal aid enables weaker parties to have access to justice - and the determination of their legal rights by judges - this cannot be sidestepped easily by mischaracterising this access as "encouragement".

Similarly, take "sometimes for litigation that people paying out of their own pocket would not have pursued" and replace the word "would" with "could". Again, if people cannot pursue litigation but for the system of legal aid, then Clarke is mischaracterising the effect of that system.

So in one written statement, Clarke gives an assurance that he accepts providing swift, cost-effective and fair access to justice is a fundamental responsibility of the state towards its citizens; and then a few sentences later he undermines that assurance in respect of civil justice by deftly casting aspersions on those who use legal aid so as to gain access to the courts for the determination of their legal rights.

In fact, the assault on the civil legal aid system announced yesterday is horrific and wrong-headed.

Instead of seeking to target civil legal aid on cases which may not otherwise be able to proceed to court, the Ministry of Justice is simply taking whole areas of civil law out of the system altogether.

At a stroke, legal aid will no longer be available for clinical negligence, employment, immigration, and welfare benefits cases. It will also not be available for most private family law cases, debt and housing issues, and education cases.

Just listing these areas of law makes one realise that it will be those less able and less equipped to deal with the stress and sheer expense (and costs risks) of civil litigation. Without civil legal aid, weak parties will simply be at the mercy of the litigation strategy of the stronger party.

For example, in family cases - as the Conservative MP Helen Grant pointed out yesterday in the Commons:

mediation is no panacea and that it can fail badly in family cases where there is an imbalance in power.

And it gets worse. The hope of the Ministry of Justice is that some of those who will no longer have access to civil legal aid will obtain legal help on a "no win no fee" basis, especially in respect of clinical negligence. This means that the claimant's lawyers will, if successful, charge an additional "uplift" on their fees, sometime up to 100 per cent of their actual charges, to the losing party. As the defendant will invariably be some part of the National Health Service, these "savings" will in practice cost the taxpayer twice the amount: it will just be the Department of Health's problem, not the Ministry of Justice's.

Then there is the general effect of their being more claimants and defendants without legal assistance. "Litigants in person" are a considerable drain on any courts resources. What should be one hour applications will tend to last one day, and trials which should take one day will tend to last a week. Accordingly, removing civil legal aid will be a false economy for the civil justice system as a whole.

There is no perfect form of ensuring access to justice for civil litigants without private resources. And the Ministry of Justice is having to make savings thrust upon it by the government as a whole. It cannot be blamed as if this were a policy that it formulated free from budget restraints.

All that said, the cuts to civil justice legal aid make no sense on their own terms and could cost the state more overall.

There is no reason to believe that law firms will be able to provide advice to those who no longer qualify; and those firms that do will seek often to burden the taxpayer by other means, through higher costs.

Individuals without civil legal aid or other access to lawyers will simply not seek to rely on their legal rights, or will be bullied into unfair settlements, or will clog up the already inefficient civil courts. None of these are attractive outcomes.

It may be that our Lord Chancellor sincerely believes providing swift, cost-effective and fair access to justice is a fundamental responsibility of the state towards its citizens. However, his department's current civil justice aid policy means this "fundamental responsibility" will certainly not be discharged in practice.

 

David Allen Green is legal correspondent of the New Statesman and a practising solicitor.

David Allen Green is legal correspondent of the New Statesman and author of the Jack of Kent blog.

His legal journalism has included popularising the Simon Singh libel case and discrediting the Julian Assange myths about his extradition case.  His uncovering of the Nightjack email hack by the Times was described as "masterly analysis" by Lord Justice Leveson.

David is also a solicitor and was successful in the "Twitterjoketrial" appeal at the High Court.

(Nothing on this blog constitutes legal advice.)

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Four times Owen Smith has made sexist comments

The Labour MP for Pontypridd and Jeremy Corbyn’s Labour leadership rival has been accused of misogynist remarks. Again.

2016

Wanting to “smash” Theresa May “back on her heels”

During a speech at a campaign event, Owen Smith blithely deployed some aggressive imagery about attacking the new Prime Minister. In doing so, he included the tired sexist trope beloved of the right wing press about Theresa May’s shoes – her “kitten heels” have long been a fascination of certain tabloids:

“I’ll be honest with you, it pained me that we didn’t have the strength and the power and the vitality to smash her back on her heels and argue that these our values, these are our people, this is our language that they are seeking to steal.”

When called out on his comments by Sky’s Sophy Ridge, Smith doubled down:

“They love a bit of rhetoric, don’t they? We need a bit more robust rhetoric in our politics, I’m very much in favour of that. You’ll be getting that from me, and I absolutely stand by those comments. It’s rhetoric, of course. I don’t literally want to smash Theresa May back, just to be clear. I’m not advocating violence in any way, shape or form.”

Your mole dug around to see whether this is a common phrase, but all it could find was “set back on one’s heels”, which simply means to be shocked by something. Nothing to do with “smashing”, and anyway, Smith, or somebody on his team, should be aware that invoking May’s “heels” is lazy sexism at best, and calling on your party to “smash” a woman (particularly when you’ve been in trouble for comments about violence against women before – see below) is more than casual misogyny.

Arguing that misogyny in Labour didn’t exist before Jeremy Corbyn

Smith recently told BBC News that the party’s nastier side only appeared nine months ago:

“I think Jeremy should take a little more responsibility for what’s going on in the Labour party. After all, we didn’t have this sort of abuse and intolerance, misogyny, antisemitism in the Labour party before Jeremy Corbyn became the leader.”

Luckily for Smith, he had never experienced misogyny in his party until the moment it became politically useful to him… Or perhaps, not being the prime target, he simply wasn’t paying enough attention before then?

2015

Telling Leanne Wood she was only invited on TV because of her “gender”

Before a general election TV debate for ITV Wales last year, Smith was caught on camera telling the Plaid Cymru leader that she only appeared on Question Time because she is a woman:

Wood: “Have you ever done Question Time, Owen?”

Smith: “Nope, they keep putting you on instead.”

Wood: “I think with party balance there’d be other people they’d be putting on instead of you, wouldn’t they, rather than me?”

Smith: “I think it helps. I think your gender helps as well.”

Wood: “Yeah.”

2010

Comparing the Lib Dems’ experience of coalition to domestic violence

In a tasteless analogy, Smith wrote this for WalesHome in the first year of the Tory/Lib Dem coalition:

“The Lib Dem dowry of a maybe-referendum on AV [the alternative vote system] will seem neither adequate reward nor sufficient defence when the Tories confess their taste for domestic violence on our schools, hospitals and welfare provision.

“Surely, the Liberals will file for divorce as soon as the bruises start to show through the make-up?”

But never fear! He did eventually issue a non-apology for his offensive comments, with the classic use of “if”:

“I apologise if anyone has been offended by the metaphorical reference in this article, which I will now be editing. The reference was in a phrase describing today's Tory and Liberal cuts to domestic spending on schools and welfare as metaphorical ‘domestic violence’.”

***

A one-off sexist gaffe is bad enough in a wannabe future Labour leader. But your mole sniffs a worrying pattern in this list that suggests Smith doesn’t have a huge amount of respect for women, when it comes to political rhetoric at least. And it won’t do him any electoral favours either – it makes his condemnation of Corbynite nastiness ring rather hollow.

I'm a mole, innit.